2007

HnlIn “The downside of paradise,” the San Francisco Chronicle’s travel editor writes:

News flash: There are problems in Paradise. 

Actually, I don’t believe that any place is heaven on earth  —  though I’ve been to my fair share of purgatories, or worse  —  but some readers are disappointed that I don’t always highlight the lowlights of Hawaii. 

What about the sluggish traffic on Kauai’s Coconut Coast or in Kailua-Kona on the Big Island, they ask. What about the helicopters that crash during sightseeing tours? And, did I know that many Hawaii residents oppose the coming interisland ferry service?

The article highlights the problem of somewhere perhaps being too good for its own good, and is, in some ways, the mainland perspective on these local stories on the development vs.  preservation dynamic that is so common locally in land use.  About the photo — can you see Waikiki’s iconic

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Continue Reading ▪ Trouble in “Paradise” — The Raindrop Never Believes It Is Responsible for The Flood

The US Supreme Court has issued a unanimous opinion in Sole v. Wyner (No. 06-531) (docket listing here), a case involving whether a party who obtains a preliminary injunction — but ultimately loses the case on the merits — can be a “prevailing party” entitled to civil rights attorneys fees.  The Court, in an opinion by Justice Ginsburg, answered no.  I’ve previously posted about the case background here, and the oral arguments here.  SCOTUSblog summarizes the opinion here, and National Public Radio reports on the case here (with audio).

This case has impact on land use litigation.  A key federal civil rights law, 42 USC  § 1988, allows the prevailing party to recover attorneys fees from the other side.  The right to own and make economically beneficial use of property isone of those federal civil rights, and land use and property issues areoften litigated under…

Continue Reading ▪ SCOTUS: “Prevailing Party,” Attorney’s Fees, and Land Use Litigation

In Citizens Against Reckless Development v. Zoning Bd. of Appeals of the City and County of Honolulu (No. 27264, May 31, 2007), the Hawaii Supreme Court clarified the administrative procedures to be used in third-party challenges to the issuance of a Conditional Use Permit (CUP).  I haven’t had a chance to digest the opinion in full, but it appears the most interesting issue in the case is whether a request for an agency to issue a declaratory ruling pursuant to Haw. Rev. Stat. § 91-8 can substitute for an appeal of an agency decision after contested case pursuant to Haw. Rev. Stat. § 91-14.  The Court answered no:

[The Appellant], having failed to bring an appeal of the CUP issuance within the required thirty-day time-limit, sought review of the CUP issuance via the declaratory ruling petition procedure provided by HRS § 91-8 and accompanying DPP Rule § 3-1. Although…

Continue Reading ▪ HAWSCT: New Case on Administrative Procedures in Conditional Use Permit Challenges

Keepout Hat tip to May it Please the Court for alerting us to a recent decision by the Second District Court of Appeals in California, LT-WR, L.L.C. v. California Coastal Comm’n (No. B187666, May 25, 2007).

In that case, the CCC denied a property owner’s request for a permit to allow it to maintain a fence around its property and post “no trespassing” signs, among other things.  The Coastal Commission’s rationale was stunning in its audacity:

The Commission also denied the gates and signs by finding that there are ‘potential’ public prescriptive rights, that the gates are not ‘necessary’, and that the gates and signs are akin to a ‘gated community.’

Slip op. at 37.  (“Public prescriptive rights” is another way of saying that if an ownerdoes not prevent the public from traversing property for a fixed periodof time, the public may gain a permanent right to “adverse possession”of…

Continue Reading ▪ Upholding The Right to Exclude: Rare Judicial Smackdown of California Coastal Commission

“Sustainability,” “smart growth” and “transit-oriented development” are the catchwords du jour these days in Honolulu, as we anticipate the $4B+ fixed guideway mass transit project.  But from the San Francisco Chronicle comes this “cautionary tale” of a Bay Area Rapid Transit (BART) transit village gone. . .not quite right:

The basic moves are great: Three and four-story buildings filled with apartments and retail space are on busy El Camino Real instead of somewhere on the region’s outskirts. There’s a BART station next door, and 70 of the 361 apartments are reserved for lower-income residents. There’s even a Trader Joe’s, a grocery chain of cultlike status.

But this showcase of so-called smart growth comes packaged in the most generic structures imaginable, an inept cross between Stanford University and Orange County. The best thing about Solaire is that, with luck, it will be a wake-up call to other cities  —  reminding them

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Continue Reading ▪ Designing “Transit Villages” in Honolulu’s Rail Project

The US Supreme Court today granted review to an inverse condemnation case against the US government.  The issue in John R. Sand & Gravel Co. v. United States,is whether the Tucker Act’s six-year statute of limitations is ajurisdictional bar to an inverse condemnation claim.  Apparently, thegovernment on appeal did not assert that the claims were barred by thestatute of limitations.  But the court of appeals did, and dismissedbecause the statute of limitations goes to jurisdiction, and cannot bewaived. 

Whether the statute of limitations is a “jurisdictional” bar, orwhether it is waiveable is an issue for us legal wonk types, andprobably will not rile up the public one way or the other like Kelo,for example.  However, the Court’s decision should clarify an area ofprocedural law that lawyers often presume they understand the basisfor, but nearly as often do not.  (The canon being that statutes oflimitations are jurisdictional, especially in…

Continue Reading ▪ Cert Grant in Inverse Condemnation Case – Are Statutes of Limitations Jurisdictional?

Last week was a busy one — quite a few local stories about land use and property law.  Here’s a rundown:

  • “It’s a tale of 2 ridges – and 17,500 homes” — The Advertiser reports on, and contrasts, two large-scale residential projects in Central Oahu.  One of the projects, Koa Ridge, resulted in a Hawaii Supreme Court decision on the trigger points to an Environmental Impact Statement, Sierra Club v. State of Hawaii Office of Planning, 109 Haw. 411, 126 P.3d 1089 (2006), which I blogged about here. Compare this story to the next one, from Kauai, and there is the same dynamic at play: we all complain about the lack of “affordable” housing, but often complain when new housing is built because it isn’t going in the “right” place, will increase traffic, and on and on.

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Continue Reading ▪ Hawaii Land Use Roundup

Vegline The Garden Island reports that the Kauai County Council has passed a resolution purportedly designed to prevent the planting of “artificial” vegetation to expand private property onto the public beach:

The Kaua‘i County Council wants to halt the practice of beachfront owners to artificially expand their properties seaward with vegetation,

Through a resolution, five of seven council members threw their support behind a “weed-the-beach” program to remove “artificially induced vegetation.”

The council and its supporters view the legislation as a way to protect public access, but some beachfront owners have said the plantings would help deter erosion of the beach in front of their properties.

An official version of the resolution has not yet been posted on the County’s web site, but the fact that the term “artificially induced vegetation” is in quotes leads me to believe that’s the language used in the reso.  There are a couple of troubling …

Continue Reading ▪ “Artificial” Vegetation and the Shoreline Boundary

ThinkTech Hawaii, Jay Fidell’s Hawaii Public Radio program on FM89.3 KIPO, has posted both the show (20mb mp3) and the aftershow podcast (13mb mp3) of  yesterday’s “Honolulu’s Fixed Guideways – How Will The Surrounding Areas be Developed.”  I was a guest along with UH Law Professor David Callies, and Honolulu attorney and developer Vernon Woo.

Stream the show here:

And the aftershow here:

Jay led a wide-ranging discussion on legal, land use, and political issues related to Honolulu’s $4B “fixed guideway” mass transit system.  We talked about public-private development partnerships, eminent domain, transit-oriented development and other related subjects.  Jay’s final question: “if you were King, what would you do about the rail?”  Food for thought.

Honolulu City Councilperson Charles Djou and transit expert Cliff Slater also called in with their thoughts.Continue Reading ▪ Honolulu’s Rail Project: Podcast of Hawaii Public Radio Program (mp3)

A heads up: from 5 – 6 pm on Wednesday, May 23, I will be a guest on Jay Fidell’s ThinkTech Hawaii program on Hawaii Public Radio, KIPO. 

The topic? “Oahu’s Light Rail – How Will the Surrounding Areas be Developed.”   KIPO can be tuned in at FM89.3, or streaming audio is available here.  ThinkTech also posts a podcast of the show a couple of days afterwards, and I will post a link when it becomes available.

Joining me as guests will be Professor David Callies of the UH Law School, and Honolulu City Councilperson Charles Djou.  Hope you can listen in.Continue Reading ▪ Tune In, Turn On: KIPO FM89.3 Wed., May 23 @ 5pm HST